by Judge Stephen Halsey
The explosion of social networking and the ability of each of us to access billions of pieces of information and connect with literally millions of individuals over the Internet can be viewed as beneficial to society as a whole. But technology advances much faster than our system of laws, and the rules of the judicial system can react or accommodate them. A vivid example was the recent argument at the U.S. Supreme Court about whether police must first obtain a search warrant before searching someone’s cell phone or smartphone.
The rules of evidence have developed over hundreds of years to ensure that jurors hear only evidence that will assist them in the ascertainment of truth, that is, the facts of what happened. For example, if you are charged with the crime of theft for stealing merchandise from a retailer, the prosecutor cannot simply show a video from the store showing your theft or just have a citizen testify that their friend is a clerk at the store and that their friend told them they saw you take the items. The testimony of that citizen is unreliable hearsay and, therefore, inadmissible evidence.
Citizens serving on a jury are given strict instructions on their duties as jurors. They are instructed about what they can and cannot do as it relates to the trial. However, in this age of Google, Twitter and Facebook, jurors may not be inclined to follow the rules announced by the judge at the beginning and throughout the trial that they are not permitted to go to the scene of the crime or incident involved in the case, or conduct an independent investigation, or do research on the Internet about the parties, attorneys or reports regarding the case, or contact any of the parties or jurors on social media, or discuss the case on social media. Jurors may feel offended that the lawyers and judge are keeping information from them that would help them in deciding the facts.
Here are just a few of the examples of misconduct by jurors; jurors have:
a. “Googled” the defendant’s, the names of co-conspirators, and the defense lawyer;
b. Looked up the social media profile of one of the teenage victims in a felony sexual abuse case;
c. Done research on the Internet to determine whether a particular type of firearm could have damaged a bulletproof vest.
d. Researched legal definitions of such words as “attempt,” “distribution,” and “possess” in a narcotics case, “great bodily injury” in a domestic violence case, and “deliberating” in a racketeering case.
e. Researched the maximum and minimum sentencing penalties online, so the judge felt he had “no choice” but to grant a mistrial.
f. Blogged by posting tidbits complaining about how they are going to have to “listen to the local riff-raff try and convince me of their innocence.”
g. Posted to juror’s Facebook page at the conclusion of deliberations on a Friday, “Stay tuned for the big announcement on Monday everyone!”
h. Posted the salient facts of the case on her Facebook page and wrote, “I don’t know which way to go, so I’m holding a poll.”
i. “Friended” the defendant on MySpace shortly before the trial, a fact she failed to mention during voir dire.
So, will this wave of juror misconduct result in the disappearance of jury trials? I don’t think so. The right to a trial by a jury of one’s peers is sacred in American jurisprudence and it is unlikely that the misconduct of a few disobedient jurors will bring the end of the jury trial. Judges will simply have to find new ways to educate jurors and ensure that they comply with the judge’s instructions on their duties. Judges have begun to explain at length that the rules are intended to grant the parties a fair trial. Unfortunately, additional measures may include threatening jurors with contempt of court, or taking away electronic devices and cell phones during jury trials, not just during deliberations. Failing to ensure that jurors follow the rules is harmful to the judicial system as a whole and, more importantly, may deprive citizens of their right to a fair trial.
Mistrials and retrials result in a significant waste of time and money to the parties, lawyers, and taxpayers, as well as inconveniencing jurors. Our system of justice depends on all participants, including the jurors, following the rules of fair trials as announced by judges. More information on this subject may be found at my blog on this issue: http://jurorsbehavingbadly.blogspot.com. This poster below is now placed in jury deliberation rooms throughout Minnesota.
Judge Steve Halsey is the host of “The District Court Show” on local cable TV public access channels throughout the Tenth Judicial District. Excerpts can be viewed at WWW.QCTV.org. Go to Community and click “The District Court Show.”